The
Belfast Agreement, Sovereignty and the State of the Union.
Brigid Hadfield
The key elements in this position are: (I) for the first time since 1937
the Irish Constitution will recognise that Northern Ireland is not a part
of the national territory; (ii) section 2 of the 1998 Act (in its reference
to "previous enactments" simpliciter) does not expressly or impliedly related
to the Act of Union; (iii) section 75 of the 1920 Act is saving or declaratory
provision, the principle of which (Westminster's sovereignty with the United
Kingdom) stands whether the provision is repealed or not-an anyway it will
be replaced by a substantive equivalent in section 5(6) of the 1998 Act
(9), and (iv) the basis of the Union remains the Act of Union, the provisions
on consent provide the only basis for change (and in their absence the Act
of Union remains) and further the consent principle is not new in Northern
Ireland constitutional history. (10)
Governments and other political leaders have perfectly legitimate reasons
for drawing different conclusions from or for providing different interpretations
of key points in the Agreement-and the silence of the British Government
concerning the meaning of key phrases is as significant as the articulated
opinions of others. The above differing interpretations of sections 1 and
2 of the 1998 Act, therefore, are not altogether surprising given the political
commitments of the various proponents of each stance. It is, however, the
aim of this article to explore these short but fundamentally significant
provisions of the 1998 Act within the context of the constitutional law
and history of Northern Ireland to seek to ascertain more clearly whether
or not they tend to weaken or to strengthen the Union. Although these provisions
will be considered in (relative) isolation, it is, of course, clear that
other elements in the Agreement/Act must-and do-have a direct bearing on
the nature of the Union. This point most especially applies to the proposed
North-South Ministerial Council. The cross-border implementation bodies
and the role and powers of the British -Irish Intergovernmental Conference.
(1) Constitutional Issues, Annex A:Draft Clauses/Schedules for incorporation
in British legislation, Cm. 3883 (April 1998).
(2) The full side-note to s.75 reads: "Saving for supreme authority of the Parliament of the United Kingdom". Emphasis provided . Royal Assent to the
Bill is expected shortly and, therefore, the article is based on the assumption
that it has received the Royal Assent and the section numbers used in the
article are those contained in the Bill for the H.L. Second Reading on October
5, 1998.
(3) There were, of course, two identical Acts of Union, the Irish Act being
the Act of Union 1800 (c.38) (Ir.). The Act of the Great Britain Parliament
was the Union with Ireland Act 1800 (39 & 40 Geo.3,c.67). The Union took
effect on January 1, 1801.
(4) Mr Ahern was speaking at the 1916 Easter Rising Commemoration (see The
Irish Times, April 27, 1998. The Taoiseach continued: "...and neither the British parliament nor people have any legal right under this agreement to impede the achievement of Irish unity if it had the consent of the people North and South." In the Dail Debates of April 23, 1998 Mr Ahern expressed
his understanding that the phrase "previous enactments" did include the
Act of Union.
(5) At the Sinn Féin Ard Fheis, April 18, 1998. Speech available on the
Sinn Fein web site: www.sinnfein.ie. |
